Deference and Defence

Paul Daly July 14, 2012

Mindful of the threat of a terrorist attack during the Olympics, the British authorities have developed an Air Security Plan. One element of the plan is to install missiles on the roof of a residential apartment tower in Leytonstone. Unsurprisingly, the residents were upset. They went, unsuccessfully, to the High Court to judicially review the missile-siting decision.No joy from Haddon-Cave J. in Harrow Community Support v Defence Secretary on any of the three grounds advanced: 1) no consultation; 2) no equality impact assessment; and 3) breach of Article 8, and Protocol 1, Article 1, of the European Convention on Human Rights.

As to consultation, Haddon-Cave J. noted that if there were always an obligation for government bodies to consult with interested parties before making decisions, “the business of government would grind to a halt” (at para. 29). As to equality impact assessment, the Secretary had actually carried one out. And as to the Convention arguments, Haddon-Cave J. was similarly unimpressed given the government’s duty to protect life under Article 2:

[40] The short answer to the Claimant’s Article 8 point is the Government’s Article 2 duty. The manifest purpose of the deployment is to prevent or deter an attack on the Olympic Park which would lead to massive loss of life. The Article 2 consideration necessitates the deployment…in any event, i.e. even if it was to have a substantial impact on the resident’s other rights

Haddon-Cave J. also commented on the level of deference appropriate in the national security realm:

[26] The rationale for this judicial restraint is obvious. There are aspects of decision-making which the Court must necessarily accept lie properly, and solely, with the Executive. These include questions of pure policy and the substantive merits of factual decisions in sensitive fields like those of national security, defence and foreign relations. These are fields in which the Court is manifestly ill-equipped to judge the merits of any decision. Further, the Court should never presume to do so since this would be to trespass on the rightful province of the Executive and to fail to accord proper respect to a democratically elected government which is answerable politically for its actions (c.f. generally CND (supra) at [22] and Marchiori (supra) at [38]; and see A v. Secretary of State for the Home Department[2005] 2 AC 68). Decisions as to the actual operational deployment of armed forces and weapons for reasons of national security are akin to, or perilously close to, the “forbidden territory” referred to in Abbasi(supra) at [106], i.e. lying within the exclusive curtilage of the Executive.

Mind you, one should not be misled by such rhetoric. Haddon-Cave J. noted that one of the exceptions to this hands-off approach is “where the act in question falls outside the ambit of the discretionary power” (at para. 25). But how can a court determine if something is outside the ambit of the discretionary power without conducting a review of its legality? The answer is that it cannot. Despite the sweeping rhetoric, government decisions on sensitive matters are subject to review. It was just that, in this as in many other cases, the applicants could not make out a persuasive case that the government had acted unlawfully (as opposed to improvidently or insensitively); indeed, the overwhelming evidence was that the tower block in question was the only feasible location. As I have argued elsewhere, justiciability concerns might reduce the intensity of review, but they cannot shield government action from review.